Vilma Rivera-saez Arbitration Award

8/14/2019 Vilma Rivera-saez Arbitration Award

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CONNECTICUT STATE BOARD OF MEDIATION AND ARBITRATIONLABOR DEPARTMENT

38 WOLCOTT HILL ROADWETHERSFIELD, CONNECTICUT

Wednesday, December 09, 2009TRANSMITTAL MEMORANDUM

Hartford, City ofandH M E ALocal

Case# 2009-A-0156 Vilma Rivera-Saez #

ARBITRATION AWARD

Copies were sent to the fol lowing parties:Stephen F. McEleney, Esquire Joseph Parker, Ph. D. f \/""?Ivan Ramos, Esquire Marc S. Mandell, Esquire*- ----Santiago Malave, Dir. Of Pers. Frank Krzywicki

C ~ ro -"oRhonda Moniz-Carroll, President ^ coTown Clerk* ^ j>File vj n_%) -*When applicable, this transmittal is filed with the town CONTACT PERSOlV

clerk in accordance with Section 3 1-98, Chapter 560,of Ivette Hernandezthe Connecticut General Statutes.


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T O W N & C I T Y C L E R RH A R T F O R D

STATE OF CONNECTICUTDEPARTMENT OFLABORBOARD OF MEDIATION AND ARBITRATION

ARBITRATION AWARD

-.D E C 28 A H r U I

In the Matter of:CITY OF HARTFORD

-AND-HARTFORD MUNICIPAL EMPLOYEESASSOCIATION

) CASE NO. 2009-A-0156)) HEARING DATES: May 26, 2009) June 19, 2009

W A R D DATE: December 9, 2009

J

AWARD DATE:

LOCATION O F HEARING:Department of LaborWethersfield, Ct.

Appearances:For the City: Ivan A. Ramos, Esq.For the Union: Stephen F. McEleney, Esq.

ISSUEDid the City of Hartford terminate Vilma Rivera-Saez fo r just cause?

If not, what shall the remedy be?


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CASENO.20Q9-A-0156 PAGE 3

system. This task, which is usually performed at the end of the day, is referred to as "closing out".As part of the closing out process, the cashiers are required to prepare a document called "DailyDeposit Reconciliation Record". This document lists all the checks and cash received by aparticular cashier an d certifies that monies received a re properly accounted for and that thedeposits in the box match the deposits recorded in the Munis system. A printout of the Munisreport is attached to the Daily Deposit Reconciliation Record. The cash and the checks itemizedin the Daily Deposit Reconciliation Record must match the checks and the cash in the Munisreport. The adding tape used in the closing out process is also attached to the DepositReconciliation Record.

Deputy Finance Director Lydia Rosario testified that th e grievant received extensivetraining during the time that sh e worked for the City. Sh e attended a supervisor's trainingprovided by an independent firm known as Skill Path. She also received on-site training providedby a representative of the Bank of America and attended a lengthy series of seminars organizedbythe ConnecticutTax Collector's Association. In addition, M s. Rosario indicated that the grievantreceived "on the job training" by Linda Savitsky, a service consultant hired by the City to assistthe Tax Collector's Office. Moreover, Mr. Thomas Bowley, an internal auditor with the City ofHartford, testified that he provided guidance an d assistance to employees in the cashier's area on aregular basis.

In the summer of 2008, Patrick Campbell, the City's Chief Auditor, was asked toinvestigate a series of cash shortages in the Tax Collector's Office. The investigation revealed theexistence of a scheme in which checks were substituted for cash in several daily deposits madeduring the month of November of 2007. Mr. Campbell found that someone in the Tax Office hadtaken cash out of a cashier 's box and replaced it with checks that ha d been received through themail. In his testimony, Mr. Campbell gave a general description of how the scheme operated:


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CASE NO. 2009-A-0156 PAGE 5lea've his cash register open while he went for lunch of for a break. Subsequently, the grievantadmitted that she told Mr. Vazquez to leave the cash register open.

Mr. Campbell fou n d that checks were also exchanged for cash on November 28, 2007.Th e Daily Deposit Reconciliation Record on this date was prepared by Yordano Vazquez, anemployee that she supervised. E mploymen t records show that the grievant gave Mr. Va zquez verygood evaluations. Sh e indicated that Mr. Va zquez's job performance was commendable in mostareas. Moreover, the grievant failed to present any records or documents that show that Mr.Vazquez was disciplined or even coun seled by her.

On or around Jan uary of 2008, a taxpa yer by the name of Talish A. Graves came to the TaxCollector's Office to complain that a $200.00 check that she had paid to the City, back inNovember 2007, ha d no t been credited to her accoun t. It turns out, that this $200.00 payment wasone of the checks that ha d been substituted for cash back on November 15, 2007. Coincidentally,this check was endorsed by the grievant and deposited with the Daily D eposit ReconciliationRecord that she prepared on November 15 , 2007. When the grievan t became a ware of the fact ofthis issue, she proceeded to credit the $200.00 tow ard s Ms. Graves' a ccount without conductingany investigation to determine the reason why the check was not deposited properly. Th e grievantused a Da ily Deposit Recon ciliation Record for the transaction but did not notify any of hersuperiors of the problem.

Patrick C ampbell testified tha t the grievant wa s responsible for doing the offi ce's da ilydeposit to the Bank. This deposit included all the monies collected during the da y by all thecashiers in the office. At the end of the da y, she would gather all the money in a sealed bag a ndhand i t over to a courier from an armored ca r service. Mr. Vazquez was not involved in thisprocess a t all. On two occasions, the bags con tained shortages; one for $2,400 and another for$100.00.


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CASENO.2009-A-0156 _PAGE 7Vazquez for his failure to do his job. Th e grievant was clearly negligent in this respect,particularly in light of the fact that she had to go out of the way to close out for Mr. Vazquez. Shewent as far as end orsing the back of the checks that had not been end orsed. Curiously, thesechecks were not received at the cashier's window. These checks came from the mail and werelater substituted for cash in Mr. Vazquez's locked box.

The grievan t's testimony wa s contrad ictory w ith respect to Mr. Vaz quez's jobperformance. She indicated that he had "prior problems", however, Mr. Vazquez's performancehistory reveals that he had very good evaluation s.

The grievant showed that she was a poor supervisor when she criticized Mr. Vazquez bu tfailed to articulate the precise n ature of his problems. She did not explain why she had to closeout for Mr. Vazquez on three occasions within a period of seven days.

The grievant did not provide a satisfactory explanation as to why she had to assume Mr.Va zquez's responsibilities on November 15th, 16th and 21st, Un fortun ately, she failed to use thesethree occasions to teach Mr. Vazquez or to help him improve his skills. Indeed, Mr. Vazquez'sskills probably worsened as a result of his supervisor's intervention. She showed Mr. Vazquez thewrong procedures when she allowed the cash register to be closed ou t without balancing thechecks and the cash with the Munis report. This omission on her part could ha ve confused asubordinate employee and lead him to believe that the Munis report was not important. Therefore,the grievant failed miserably as a supervisor because she allowed Mr. Vazquez to use improperclosing procedures.

The grievant also failed as a supervisor when she instructed her subordinate employee tokeep his drawer open d uring lun ch and during break. Allowing a cash register to remain open isclearly wrong and highly suspicious. There should be only on e cashier per cash register. An yperson responsible for a cash drawer should kn ow that cashiers can not share cash registers. If a


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CASE NO.2009-A-0156 PAGE 9Mr. Lee Erdmann , the decision-maker in the grievant's termination, was unequivocal in the

allegation contained in his August 4, 2008 termination letter in which he stated that"The m isappropriation of cash through the substitution of seven checks for cash in a cashier'sdaily batches totaling $6,657.73 on four separate occasions even though there was no n eed for youto be involved in an y of the batches or to have completed the Daily Deposit an d R econciliationRecord form for any of the cash shortages;" Mr. Erdmann fired the grievant because he claimedshe stole $6,657.73 on four separate occasions.

The City does n ot dispute the grievant's testimony that Mr. Vazquez brought the grievantthe cash an d checks on the three occasions. The grievan t was assisting Mr. Vazq uez because heha d so ma n y prior problems. M r. Vazquez hand ed the grievant the cash a n d checks which thegrievant then totaled up an d put on the Daily D eposit a n d Reconciliation Record . The cash wascorrectly totaled. The checks were correctly totaled . The combination of dash an d checks wascorrectly totaled. The grievant then checked the total deposit against the Munis system whichshowed up on the screen a t her desk. Her screen on ly showed the total. Mr. Va zquez then tookthe form, in each instance, an d printed out the pages from the Munis system. The grievant neversa w a hard copy of the Munis report. No one testified sh e did.

M r. Va zquez took the checks an d cash from his drawer, hand ed them to the grievant fo rcount ing an d tallying, took the checks an d cash back to his workstation, printed out the Munisreport an d attached it . Despite his responsibility for his drawer, Mr. Va zquez allegedly nevernoticed the fact the checks did not reconcile with the checks or the cash with the case. Mr.Vazquez faced n o discipline whatsoever. The grievant was fired.

It was the City Auditor, Mr. Campbell, who discovered the "swap" of cash fo r checks. Mr.Cam pbell ad mitted he "can't say" w ho took the mon ey.


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CASENO.2009-A-0156 PAGE 11

Again, there is absolutely no documentary or testimonial evidence of any shortcoming bythe grievant in regard to filling ou t shortage reports. This, once again, evidences the City'seagerness to make unsubstantiated allegations against the grievant.

There is no evidence whatsoever the grievant was warned that it is "unacceptable workperformance' for a supervisor to assist a subordinate who is having trouble in preparingreconciliation reports by filling out a deposit report. The record is also devoid of any directivewhatsoever to the grievant that she should n ot engage in this conduct. How would a ruleprohibiting a supervisor from assisting a subordinate having problems in filling out recordsreasonably relate to the efficient operations of the employer?

It is true the grievant assisted Mr. Vazquez with the records. However, there is no proofthere was any rule or directive precluding this conduct.

Assuming there was a rule against this conduct, there was no verbal or written warning tothe grievant she would be disciplined if she violated this theoretical rule. It would be absurd tosuggest termination as an appropriate remedy fo r assisting a subordinate.

Another allegation involves the $200.00 check which was brought in by a taxpayer onJanuary 17 , 2008. This was the same customer who paid $200.00 by check number 1512 on orabout November 12,2007 which was one of the checks swapped for cash.

When the taxpayer came in with the cancelled check two months later, the grievant dealtwith the customer. The grievant determined from the cancelled check the $200.00 ha d indeedbeen deposited into the City's account and not credited to the taxpayer. Hence, the grievant gavethe taxpayer a $200.00 credit and created a record of the transaction noting "CK Dep. But not inMunis system -proof of @R attached." The grievant then attached to this report a copy of thecancelled check. Both Mr. Greco and the grievant testified the document was passed on to the


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CASE NO. 2009-A-0156 . PAGE 13It is undisputed the grievant did, on occasion, tell Mr. Vazquez to leave his cash drawer

open when he took lunch a t lunchtime. The grievant was instructedby Ms. Rosario to personallyassist in covering windows at lunchtime. The grievant was not instructed she could not ask acashier to leave a drawer open so she could assist with the customers. The grievant never saw anywritten policy or procedure prohibiting a cash drawer from being open to cover fo r customersduring lunchtime. None of the City's witnesses were aware of any written policy or procedure inthe City of Hartford prohibiting this practice.

The best the City could offer on this point was the testimony of Mr. Bowley, a Cityauditor. Mr. Bowley was dispatchedby the Auditor's Office to attempt to address the chaos in theCity of Hartford Tax Department. Mr. Bowley was in the Tax Office between October an dDecember, 2006. At that time, the grievant was a cashier, not a supervisor. The supervisor wasMarlene Fleeting at the time. Mr. Bowley testified he told all of the cashiers they were expectedto look after their cashboxes, were not to share them and were "100% responsible for the cash thatwa s in there". At the time, the grievant was a cashier and no doubt took the admonition to mean

she was responsible for her own drawer.However, that instruction from someone not in the Tax Office and not a supervisor, was

given in the fall of 2006, when the grievant was a cashier. She was promoted to supervisor inearly 2007 and the incidents in question took place at the end of 2007.

It is unfair to assume that because someone from the Auditor's Office, attempting to helpthe Tax Office with numerous problems, suggested to cashiers they a re responsible fo r theirdrawers, that the grievant must interpret that to mean she could not ask a cashier to keep a draweropen a t lunchtime once she was a supervisor.

The City alleges the grievant engaged in this practice on several occasions. If this practicewas in violation of a rule or regulation, why didn't anyone point out to the grievant that she was


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CASENO.20Q9-A-0156 PAGE 15To terminate this grievant based upon the allegations of failure to follow un written, vague

or n on-existent "policies and procedures" without prior written warning or prior d iscipline issimply unacceptable.

DISCUSSIONTh e Panel met in Executive Session to discuss the issue put before it by the parties based

upon the evidence submitted to it for consideration.The Pan el concluded that there was n o question that the grievant ha d failed to perform her

supervisory duties correctly. Specifically, it is accepted fiscal practice that any cashier is heldaccountable for his/her cash drawer and not to pass this responsibility to a third party even if it ishis/her supervisor.

The grievant's satisfactory rating of her subordin ate's performa nce despite her claims thathe "had problems" was baffling to the Pan el. As supervisor, she is required to documen t anemployee's work performance an d to coach/counsel the employee in steps to improveperformance. No such eviden ce of any coaching, counseling or documentation of performancedeficiencies wa s offered.

Although the City implied that the grievant ha d "stolen" money through an improperdeposit scheme, there was no evidence offered to show the grievant was, in fact, a thief thus thisimplication was quickly put aside by the Panel. Had the City been able to prove what it apparentlybelieves to be true, the disciplinary a ction taken in this case would ha ve been supported.

Therefore, the Panel had to review the City's argument that the grievant had been "grosslynegligent" in the performance of her duties. Here the Panel agreed with the City's position thatthe grievant's inappropriate handling of a cashier's accounts was fiscally irresponsible. Wh en shedirected an employee to leave his cash drawer open, this employee was no longer offered a safean d secure work environ men t. Regardless of the reason claimed, it was wrong an d improper.


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CASEN0.2009-A-0156 PAGE 17to eave it open during his break or lunch period? The Panel does not support the Union'scontention that the grievant did n ot have to follow an auditor's previous admonition regardingcash drawers once shebecame a supervisor simply because it was said before she became asupervisor. She was well aware of the importance to have secure cash drawers and had receivedtraining in collection procedures.

In light of the above, the Panel rules that the termination of the grievant was too harsh alevel of discipline but that the grievant is also culpable fo r deficiencies and is deservingofdiscipline therefore, the discipline is reduced to that of an indefinite suspension without back payand/or benefits.

AWARDThe grievance is sustained. The City of Hartford did not have just cause to terminate

Vilma Rivera-Saez. The discipline shall be reduced to that of an indefinite suspension. Sh e shallbe restored to her position sans back pay and/or benefits. Additionally, she shall be trained in thedepartment's current practices an d procedures.

Joseph A. Parker, PhDPanel Chair

Marc S. Mandell, Esq.Management Member

rank R. KrzywickiLabor Member


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Dissenting OpinionI respectfully d issent because I believe that there was overwhelming evidence that

the grievant engaged in miscond uct in cludin g taking mon ey that residents ha d paid toto the City of Hartford's Office of Tax Collector. Th e residents thought reasonably thatthe money they were sending to the Office of Tax Collector was being used to pay theirproperty taxes, primarily for motor vehicles. Instead the mon ey was used in a scheme todeprive the City of Hartford of its tax dollars a nd to deprive the residen ts of Ha rtfordfrom receiving proper credit for having pa id their property taxes. I therefore believe thatrestoration of the grievant to her supervisory position in the very office where themisconduct took place and where she played a leading role in the scheme is improperin light of the contract and in light of public policy.

The scheme was not terribly sophisticated or difficult to understand. When taxesare paid, the cashier ma kes an entry into the Mun is system that states ho w much moneywas taken in and by what means (cash, check or money ord er). At the end of each day,the cashier does a reconciliation to make sure what is in his or her cash register m atcheswhat is recorded into the Mun is system. If things do not match, then an investigation isneed ed to reconcile the Mun is system report with what was in the cash register.

In the three instances which were brought before the panel by the City of Hartford,it was proven by un controverted evidence that checks were received an drouted to the cash register of a hapless cashier na med Va squez. In each of the

instances, there was un controverted eviden ce that the grievant instructed Vasquez toleave his cash register open.1 In each of the instan ces, checks w ere put into the cash

1 Vasquez was the grievant 's subordinate. As supervisor, the grievant could and d i d require Vasquez toleave hi s cash drawer open. V asquez made n o independentdecisions.


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Hartford to reduce the grievant in rank. When she returns, she will once again besupervising all of the cashiers an d the cashiers will be required to obey herinstructions. I find that troublesome and therefore dissent.

Documents

Vilma Rivera-saez Arbitration Award